Institute for Justice

Facing the Spectre of a Bond

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IJ Action | January 22, 2016

In far too many states, civil forfeiture enables law enforcement to take ownership of property without even charging its owner with a crime. And some states make challenging forfeiture cost-prohibitive—so innocent owners can never even get their day in court.

Michigan and Illinois require property owners to post a bond equal to 10 percent of the value of the claimed property in order to challenge a forfeiture. If the owner doesn’t pay up in time, the government wins by default.

Think of that: the government can take your property without charging you with a crime and then make you pay a bond just to have your day in court.

This isn’t like posting bond to get out of jail. You don’t get your property back pending trial. You’re paying solely for the opportunity to prove your innocence.

Illinois is particularly shameless. Even if you manage to scrape together the bond and then win your challenge, the court only returns 90 percent of what you paid, keeping 10 percent “as costs.”

At their worst, these requirements violate our cherished ideal of “equal justice under law” by pricing justice out of the reach of the poor. But even if an owner can afford to pay the bond, it’s wrong to harass him with a needless burden that discourages him from winning back his own property. What’s more, the difficulty of bringing a challenge creates an expectation that property owners won’t even try. Naturally, the smaller the chance law enforcement will need to make their case in court, the greater the temptation they’ll have to take property based on flimsy justifications.

Taking your property is certainly tempting, because law enforcement often gets to keep it for its own use. Illinois law enforcement keeps 90 percent of forfeiture proceeds and Michigan law enforcement can keep up to 100 percent.

Your loss is their gain—and the bonding requirement makes your loss more likely.

Villeneuve had $19,940 seized when police searched her home, suspecting her of growing and selling marijuana. She says the money came from disability payments and a car accident settlement, but she couldn’t make that argument in court because she couldn’t get into one; she couldn’t pay the necessary bond because the government had taken all her money.

“Is it constitutional for the state to first seize all of Ms. Villeneuve’s money, and then deprive her of the ability to contest the forfeiture because, as a result of the seizure, she has no money to post a bond?” asked the ACLU, which had taken her case.

Under the pressure of the ACLU’s lawsuit, the Alpena County Prosecutor’s Office agreed to waive Villeneuve’s bond and now her forfeiture case will be considered on its merits. But innocent owners shouldn’t have to bring suit just to see the inside of a courtroom.

And Villeneuve is not the only person who has suffered from forfeiture bonding requirements.

Shantrese Kinnon, also of Michigan, lost her car because she couldn’t afford her bond. Nelly Moreira, a victim of the District of Columbia’s now-repealed bonding requirement, was able to scrape together enough money by borrowing from friends and family, but she was left struggling to make ends meet:

“There were days I didn’t have a good meal,” she said.

Why would states enact such pernicious requirements?

The bonding requirements are supposedly in place to discourage frivolous challenges. But there are better ways to do that.

For example, the federal government used to have bonding requirements for those seeking to challenge its forfeitures. But the Civil Asset Forfeiture Reform Act of 2000 removed these requirements, implementing substitute safeguards. These safeguards include a requirement that challenges to forfeitures be made on oath, under penalty of perjury; a civil fine to be levied if it turns out a challenge was indeed frivolous; and a three-strikes rule barring serially frivolous challengers from bringing further claims.

Evidently, the bonding requirements are not needed to discourage frivolous suits. They really serve to discourage innocent property owners from defending their rights in court, thereby keeping the forfeiture funds flowing into law enforcement’s budgets.

Fortunately, there’s hope for reform in Michigan. State Representative Pete Lucido introduced a bill in May that would eliminate Michigan’s bonding requirement. He’s hoping to build on momentum from forfeiture reform legislation Governor Rick Snyder signed into law earlier this year.

Bonding requirements are like a crooked bouncer at the courthouse door, keeping out the poor and shaking down the rest. It’s time he’s fired.

— Walker MulleyWalker Mulley is a Maffucci Fellow at the Institute for Justice